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PS21 Insight: What the SCOTUS Jerusalem passport decision means

What happens when a citizen of Crimea wants his/her passport to say, “born in the Russian Federation”? Or, in the near future, an Iraqi or Syrian Kurd who shares U.S. citizenship wants the passport to say, “born in Kurdistan”? Or, even more menacing, a U.S. citizen born in Mosul wants to say, “born in the Islamic State”?

Last month the US Supreme Court ruled that Congress cannot force the State Department to issue passports that recognize Jerusalem as a part of Israel, concluding the twelve-year-long case Zivotofsky v. Kerry. The decision sparked a conversation on the status of Jerusalem, a question that remains one of the most sensitive sticking points of the Israeli-Palestinian peace process.

Below is a selection of comments from the Project for the Study of the 21st Century.

Dr. Nikolas Gvosdev is a Professor of National Security studies at the US Naval War College and a member of PS21’s International Advisory Group.

Milena Rodban is an independent geopolitical risk consultant and a Global Fellow at PS21.

Dr. Hayat Alvi is a Professor of Middle East Studies at the US Naval War College and a Global Fellow at PS21.

Please credit PS21 if you wish to use any of the material below. If you wish to contact us to speak to any of our advisors or global Fellows, please e-mail PS21Central@Gmail.com.

Gvosdev: The decision itself is part of a long chain of precedents (especially the 1935 Curtiss-Wright decision) where the Supreme Court has reaffirmed that the President, as head of the Executive Branch, acts as the sole organ for the United States in foreign policy. The Congress, using its legislative power and budgetary authority, can set and define the parameters of Presidential action, by giving or withholding permission or funds–but what this decision reiterates is that Congress cannot tell the President how he must use or exercise his powers in any given specific case.

Rodban: This ruling changes little in deciding that the executive branch is the sole part of government to have power over recognizing foreign entities. That had already been the default setting of the US government.

But that doesn’t mean Congress is powerless in the realm of international affairs.

Gvosdev: If Congress…wants to vest in the legislative branch the power to recognize countries and their territories, it is free, in theory, to pass a law that would vest that power in general in the legislature. Having given that authority to the President, however, Congress cannot demand that its preferences be substituted in place of the chief executive’s in terms of specific actions taken or not taken by the President.

This is critical because in other areas the Congress seems eager to dictate to the President how he ought to carry out policy. Congressional authority, for instance, is absolutely necessary, given the parameters of the U.S. Code, for the President to have if he wishes to send arms to Ukraine. Congress can grant him the authority to do so, but they cannot compel him to act. (It is true, however, that Congress can use its authority to “hold hostage” other parts of the President’s agenda if he does not wish to acquiesce to their preferences on this or other issues).

Alvi: Decision making that directly affects foreign policies – and particularly those policies that are very fluid and politically loaded and highly sensitive, such as the status of Jerusalem – allow the President of the United States room for maneuver and flexibility as changing circumstances dictate.

That does not mean that Congress has no recourse or its own room for maneuvering and responding. Congress holds the power of the purse, that is, funding foreign policy courses of action, as articulated in Article I of the Constitution. In addition, Article I, section 8, states, “Congress shall have the power to regulate commerce with foreign nations; to establish an uniform Rule of Naturalization …”. However, that does not mean that the President has no authority or power to engage in political discourse that has impacts on said issues. Obviously, cases arise that have no precedence due to their uniqueness, as in the case of Jerusalem/Israel. There is nothing wrong with the Executive taking certain stands on issues that have significant political ramifications, and that requires interactions between the Executive and Legislative branches on a case-by-case basis.

Rodban: The Israeli leadership, and indeed the public, are used to the American administrations speaking out of both sides of their mouth on the status of Jerusalem, which is of course a final status issue. (Negotiations being paused as they are, no movement is expected on even the simplest of disagreements between the Israelis and Palestinians, let alone the final status issues that are the very contentious factors in their ongoing conflict.)

By speaking out of both sides, I of course refer to consecutive US administrations vehemently arguing that Jerusalem will remain the capital of Israel, and remain undivided. Obama said this himself in his spirited 2008 address to AIPAC, for example, but the administration’s tune became far less vehement, as it subsequently avoided stressing that Jerusalem was Israel’s capital, and instead repeatedly claiming the status was undecided. The big issue here is that Obama’s two statements were mutually exclusive with the assertion that Jerusalem’s current status is not final, and that all options are open in negotiations. If all options are open, then dividing the city is likely to be at the top of the options list. If the US argues that it will not be divided, then there are in fact very few options, and really only the one: if half of it is already in Israel, and it will never be divided, then all of it will remain part of Israel, right? Seems pretty decided to me…

Given tense relations between the Obama and Netanyahu administrations, which are worsened still by perceptions that the US is no longer as strong an ally of Israel as it once was (evidenced by reports that the US is caving on many aspects of the Iran nuclear negotiations), any issue that can be used to support the assertion that Obama is not a close ally are likely to exacerbate tensions. The biggest effect will likely be among American Jews who may sour on the Dems ahead of next year’s elections. The administration’s continuing vacillation on the issue of Jerusalem will cause journalists, particularly Israeli ones, to question all the nominees, to see what they will commit to, but a single statement will no longer be accepted by an Israeli public that’s heard US administrations try to have it both ways for decades.

Alvi: The caveat in all of this is the special U.S.-Israeli relationship, and specifically how this relationship affects U.S. domestic politics, as well as U.S. foreign policy making relative to the Middle East region. Perhaps the U.S. State Department should allow passports to say, “born in Jerusalem, Israel/Palestine”, but that comes with its own set of problems, emotive reactions, and a host of more lawsuits, to be sure.

And it could have ramifications beyond the Middle East as well.

Alvi: What happens when a citizen of Crimea wants his/her passport to say, “born in the Russian Federation”? Or, in the near future, an Iraqi or Syrian Kurd who shares U.S. citizenship wants the passport to say, “born in Kurdistan”? Or, even more menacing, a U.S. citizen born in Mosul wants to say, “born in the Islamic State”?

PS21 is a non-national, non-ideological, non-partisan organization. All views expressed are the commentators’ own.